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Allahabad High Court · body

2009 DIGILAW 3134 (ALL)

Prabhat Ranjan Shukla v. State of U. P.

2009-09-14

VINOD PRASAD

body2009
Hon'ble Vinod Prasad, J. 1. The argument on this bail cancellation application was heard and order was reserved. However, avizandum, some clarification was to be sought and proper perusal of the case diary was also necessitated and hence, the matter was listed again today for hearing. This is a bail cancellation application has been filed by the informant Prabhat Ranjan Shukla against respondent No. 2, Sanjai Pandey. 2. Abbreviated facts, which have given rise to this bail cancellation application are that respondent No. 2, Sanjai Pandey was alleged to have ravished the chastity of informant's daughter aged about 15 years on 21.10.2007. FIR of the said incident was lodged on 6.1.2008 after a delay of more than two months. Medical examination of the victim was conducted between 7.1.2008 to 10.1.2008 and according to the medical examination reports victim was 19 years of age and no definite opinion regarding rape on her could be given by the doctor. In the same breath, it is noted here that the doctor had also written that her hymen was old ruptured and vagina admitted one finger. The vaginal slides, which were prepared, did not indicate any spermatozoa or gonococci. 3. Sessions Judge, Gorakhpur, granted bail to respondent No. 2, Sanjai Pandey vide his impugned order dated 30.1.2008. While granting bail to the accused it was mentioned that the FIR was lodged very belatedly and the statement under Section 164 Cr.P.C. was recorded after further delay of 11 days and only one finger would penetrate the private part, no sign of rape or molestation was found on the body of the victim. Session's Judge also noted the age of the victim recorded in her medical examination report which is 19 years. On an over all assessment of the allegations and material placed before him, Learned Sessions Judge, Gorakhpur came to the conclusion that it was a case for bail and therefore he exercised his discretion favourably allowing bail to the respondent accused. Hence this bail cancellation application. 4. I have heard Sri Manish Tiwary, learned counsel for the applicant informant and Sri V.P. Srivastava, learned Senior Counsel assisted by Sri C.V.D. Dubey, Advocate on behalf of accused respondent. 5. Counter affidavit has been filed to which a rejoinder affidavit has also been filed by the applicant. 6. Hence this bail cancellation application. 4. I have heard Sri Manish Tiwary, learned counsel for the applicant informant and Sri V.P. Srivastava, learned Senior Counsel assisted by Sri C.V.D. Dubey, Advocate on behalf of accused respondent. 5. Counter affidavit has been filed to which a rejoinder affidavit has also been filed by the applicant. 6. This bail cancellation application has been filed primarily for the reason that the Sessions Judge was due to retire on 13.1.2008 and he took undue interest in granting bail to the accused. It is mentioned that 28.1.2008 was the date fixed which was posted further for 19.1.2008 and then, according to the case of the applicant, the bail was granted on 31.1.2008 by indicating a pre-pone date 30.1.2008.With this Sri Tiwary, learned counsel for the applicant, made those very argument, which he has mentioned in this bail cancellation application by pointing that the prosecution version is consistent and 164 Cr.P.C. statement is in tune with the allegations levelled in the FIR. He further invited the attention of the Court on the medical examination report dated 7.1.2008 where the doctor has opined that hymen was ruptured and vagina admitted one finger. On such a noting, Sri Tiwary, urged before me that it was a definite case of ravishing the chastity of a young girl aged about 15 years. He further submitted that the accused respondent is a student leader and, therefore, he will not allow the trial to proceed and, therefore, the bail should be cancelled. He further pointed out that the delay is explained as according to the FIR allegations itself, there was a CD of the incident and by threatening the victim she was stopped divulging the incident for two months. 7. Sri V.P. Srivastava, learned Senior Counsel contrary submitted that there is no CD or DVD. It is a false allegation and no CD has been recovered as yet from the accused. He further submitted that the victim has not said that any CD or DVD was prepared but her allegations in that respect is only through utterances made by the accused. He further pointed out that the medical examination report indicate the age of the victim to be 19 years and the doctor has given a definite opinion that it could not be said that the victim was subjected to lustres overtures. He further submitted that no spermatozoa etc. was found. He further pointed out that the medical examination report indicate the age of the victim to be 19 years and the doctor has given a definite opinion that it could not be said that the victim was subjected to lustres overtures. He further submitted that no spermatozoa etc. was found. He further submitted that this is a bail cancellation application and once the opinion of Sessions Judge cannot be said to be perverse or based on extranuous materials or on the facts which were not relevant and germane to the grant of bail, the bail of respondent accused should not be cancelled. He further contended that there is no allegation of tampering etc. and, therefore, the bail cancellation application should be rejected. 8. Summation of the facts and the argument raised by either sides before me today indicate that the bail was granted by the Sessions Judge primarily for the reasons that there is no definite medical opinion in support of the charge and the victim according to the medical opinion was 19 years of age. Sessions Judge, Gorakhpur, also noted the fact that the FIR was lodged very belatedly and even 164 Cr.P.C. statement was recorded 11 days thereafter. According to the medical examination report, it was difficult to hypothesis that the victim was subjected to rape. On such premise, Sessions Judge granted bail to the accused on 30.1.2008. So far as allegations of passing bail granting order ante dated and thereby tampering with the record of judicial proceedings, in my humble view the said allegation is wholly preposterous. There is no material on record to substantiate the said charge. At the fag end of the career of a Session's Judge, it is very easy to make any allegation against him because he will be unable to make any defence in that regard since he was to retire the following day. The crime, no doubt, is a social crime with far reaching effects on the victim but at the same time, while judging the bail cancellation application, the Court must not forget that unless the opinion of the trial Judge or the Court, who has granted bail to the accused is wholly unacceptable perverse, the liberty of bail granted by the trial Judge should not be interfered with by this court. In this respect, few judgements of the Apex will be a proper guideline and, therefore, I refer some of those judgements herein below:- In Aslam Babalal Desai versus State of Maharastra: AIR 1993 SC 1 it has been held by the apex court as follows:- " Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or 439(1) it follows as a natural consequence that the said order can be cancelled under subsection (5) of Section 437 or sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh's case ( AIR 1987 SC 149 ) the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to." In the decision of State (Delhi Administration versus Sanjai Gandhi: AIR 1978 SC 961 it has been held as under:- "13. Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. A brother, a sister or a parent who has seen the commission of crime, may resile in the Court from a statement recorded during the course of investigation. That happens instinctively, out of natural love and affection, not out of persuasion by the accused. The witness has a stake in the innocence of the accused and tries therefore to save him from the guilt. Likewise, an employee may, out of a sense of gratitude, oblige the employer by uttering an untruth without pressure or persuasion. In other words, the objective fact that witnesses have turned hostile must be shown to bear a causal connection with the subjective involvement therein of the respondent. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pressure of the prosecution." 9. In the case of Manjit Prakash and others versus Shobha Devi: AIR 2008 SC 3032 , apex court has approved the observations made in Aslam Babalal (Supra). In view of the settled proposition of law, I am not inclined to cancel the bail of the respondent accused granted more than one and half years ago. 10. However, while granting bail to the accused respondent No. 2, Sanjai Pandey, Sessions Judge, Gorakhpur has not imposed any condition on him to detest him from tampering with the evidences or to cooperate with the trial. In such a view, I impose following conditions on the said accused:- 1. That the accused will report to the police station of his residence once a week, 2. That the accused will not enter into the area of police station Cantt, which is the police station of the victim and the informants residence except on those dates on which his trial is fixed for hearing, 3. That the trial Court will not grant any personal exemption to the respondent accused for any reason. That the accused will not enter into the area of police station Cantt, which is the police station of the victim and the informants residence except on those dates on which his trial is fixed for hearing, 3. That the trial Court will not grant any personal exemption to the respondent accused for any reason. Trial Court is directed to frame charges against the accused respondent No.2, Sanjai Pandey forthwith and try him on day to day basis and positively made an endeavour to conclude the trial within two months from the date of production of certified copy of this order before it. If the trial Court thinks it necessary, trial Court can even direct the protection of the victim and the informant by giving a direction to SSP, Gorakhpur to post some police constable for the protection of the victim and the informant. With the aforesaid directions, this bail cancellation application is rejected.